Wisconsin Department of Health and Social Services, QC No. 62 (1994)

Department of Health and Human Services

Departmental Appeals Board

AFDC QUALITY CONTROL REVIEW PANEL

SUBJECT:  Wisconsin Department    
of Health and Social Services
Docket No. A-94-34
Decision No. QC62

DATE:  March 21, 1994

DECISION

The Wisconsin Department of Health and Social Services
(Wisconsin) appealed a November 2, 1993 quality control
(QC) determination by the Regional Administrator of the
Administration for Children and Families (ACF).  ACF
determined that Wisconsin's state QC review had erred in
finding that the amount of B.Y.'s Aid to Families with
Dependent Children (AFDC) grant was correct.   1/  ACF
determined that there was an overpayment of $40 in B.Y.'s
AFDC grant in the review month of August 1992 since all
of her child care costs for August were not paid in that
budget month.

For the reasons discussed below, we sustain ACF's
determination that the Wisconsin QC review erred in
finding that the amount of B.Y.'s AFDC grant was correct.

Applicable Authority

Section 408(a) of the Social Security Act (Act) provides:

 In General.--In order to improve the accuracy of
payments of [AFDC], the Secretary shall establish
and operate a quality control system under which the
Secretary shall determine, with respect to each
State, the amount (if any) of the disallowance
required to be repaid to the Secretary due to
erroneous payments made by the State in carrying out
the State plan approved under this part.


Further, the Act requires each state to review a sample
of cases in which AFDC payments were made during the
review period in order to determine the level of
erroneous payments.  The Act then provides that the
Secretary shall review a subsample of the cases reviewed
by a state, and notify the state of any case in the
subsample which the Secretary finds involves an erroneous
payment.  See section 408(b)(1)(A) of the Act.
 
Section 402(a)(7)(A) of the Act requires a state agency,
in determining need, to take into consideration any
income and resources of any child or relative receiving
AFDC payments.  Further, 45 Code of Federal Regulations
(C.F.R.) � 233.20(a)(3)(ii) provides that all income and
resources, after all policies governing the reserves and
allowances and disregard or setting aside of income and
resources have been uniformly applied, shall be
considered in determining need and the amount of
assistance payment.   2/  Among the specific disregards
listed, the regulations provide that child care costs up
to a certain amount must be disregarded for purposes of
AFDC eligibility.  45 C.F.R. � 233.20(a)(11)(i)(C).

The regulations additionally provide --

 The State agency shall operate the quality control
system in accordance with policies and procedures
prescribed in the Quality Control Manuals issued by
the Department [of Health and Human Services].

45 C.F.R. � 205.40(b)(1).

Concerning the regulatory mandate for disregarding child
care costs, the Quality Control Manual (QCM) provides --

 After applying all of the other earned income
disregards, the State must apply a disregard for the
cost of care for each dependent child or
incapacitated adult who is receiving AFDC.  For
individuals employed full-time, the State must
disregard the actual cost up to $175 per month per
dependent ($200 for children under two).  For
individuals employed less than full-time, or not
employed throughout the month, a State may apply a
disregard for actual cost up to an amount less than
the disregard limits of $175 and $200 per dependent,
in which case, a procedure must be in place for
determining and applying the disregard.

 The dependent care disregard is applied to income
when the expense is paid, except when income is
prorated under [permissible state practice (PSP)]. 
When income is prorated, dependent care expenses are
allowed as incurred.

QCM � 3556.D.1.   3/ (emphasis added).

Factual Background

B.Y. incurred child care costs of $92.50 in August 1992.
 B.Y. paid the child care provider $52.50 in August, but
did not pay the remaining $40 until September 1, 1992.

In determining B.Y.'s AFDC payment for August, the
Wisconsin QC review disregarded the total child care
costs of $92.50. 

In its determination that the Wisconsin QC review had
erred, ACF found that B.Y.'s AFDC grant was overpaid $40
in August 1992 because only $52.50 was paid in the budget
month, with the other $40 being paid in the following
month.  Citing section 3556.D of the QCM, ACF stated that
the dependent care disregard is applied to income only
when the expense is paid, unless the income is prorated
under Wisconsin's PSP.  Since Wisconsin's PSP does not
allow proration on income, ACF concluded that the child
care expense is applied when it is paid and not when it
is incurred.

Analysis

Wisconsin argued that 45 C.F.R. � 233.20(a)(11)(i)(C),
the regulation providing for the disregard of child care
costs, does not specify that such costs must be deducted
only in the month in which they are paid.  Wisconsin
contended that B.Y.'s record shows a consistent history
of two payments each month to the child care provider. 
Wisconsin insisted that the county agency documented and
verified B.Y.'s child care costs and B.Y. diligently
reported those costs.  Wisconsin argued that there was no
question that B.Y. incurred child care costs of $92.50 in
August, that B.Y. promptly paid those costs, that those
costs were reported appropriately, and that no public
funds were improperly expended in this case.

Wisconsin also questioned ACF's reliance on the QCM as
the authority for its finding that an error occurred in
B.Y.'s case.  Wisconsin argued that, since 45 C.F.R. �
205.40(b)(1) enumerates five areas in which a state
specifically must apply the QCM, the state need not
follow the procedures and policies set forth in the QCM
in other areas.   4/  Further, Wisconsin argued that the
QCM provisions on applying the child care disregard were
inconsistent with the regulations since 45 C.F.R. �
233.20(a)(11)(i)(C) does not specify that the child care
payment must be made during the budget month.

While Wisconsin is correct that 45 C.F.R. � 205.40(b)(1)
does mention specific areas where the QCM's policies are
to be followed, we are not prepared to read the
regulation as narrowly as Wisconsin argued.  The
regulation also broadly states that a State agency shall
operate its quality control system according to the
policies and procedures prescribed in the QCM.  There is
no stated limitation in the regulation, however, that the
procedures of the QCM in other areas are not to be
followed.

An examination of the development of 45 C.F.R. �
205.40(b)(1) supports this view.  When the regulation was
first proposed in December 1976, it instructed the State
agency to follow the five specific directives now
contained at subsections (i) through (v), but made no
mention of the QCM.  41 Fed. Reg. 55,727 (December 12,
1976).  When the regulation was officially promulgated,
however, the preamble noted that commentators made
objections to the lack of specificity in the proposed
regulation, and the commentators suggested that the QC
Manuals which detail the procedures for QC reviews be
incorporated into the regulations.  42 Fed. Reg. 37,205,
at 37,206 (July 20, 1977).  In response to these
comments, the preamble declared:

 The procedures set forth in the QC Manuals are
specifically incorporated by reference into the
final regulations.

Id.  Thus, it is clear that it was the Department's
intent that states be required to adhere to all the
policies set forth in the QCM.

Furthermore, the policy in the QCM applying the dependent
care disregard "when the expense is paid" is not
inconsistent with the regulation.  The regulation
requires (in relevant part) disregard of the "actual cost
. . . not to exceed $175" of dependent care expenses. 
The QCM policy represents a reasonable interpretation of
the "actual cost" language in calculating a payment which
must reflect monthly income and need determination. 
Accordingly, there is no conflict between the
requirements of � 3556.D.1 of the QCM and 45 C.F.R. �
233.20(a)(11)(i)(C).

Moreover, there is a reasonable basis for the QCM
provision limiting the amount of the disregard for child
care costs to the amount of such costs actually paid in a
month.  If, as Wisconsin contended, the amount of the
child care disregard were not to be determined when the
costs were paid, it would be possible for an AFDC
recipient to manipulate the system so as to exceed the
regulatory limit on the amount of allowable child care
costs.  An AFDC recipient could incur child care costs in
excess of $175 for one child in a month, but have the
total amount of the costs disregarded by deferring
payment of some of the costs to the next month.

Conclusion

For the reasons discussed above, we conclude that ACF
correctly determined that the Wisconsin QC review erred
in not finding a $40 overpayment in B.Y.'s AFDC grant for
August 1992.


                                                        
                            __________________________
                          Peggy McFadden-Elmore


                          __________________________
                          Leslie Sussan


                          __________________________
                          Thomas D. Horvath


* * * Footnotes * * *

      1.    In order to protect her privacy, this AFDC
recipient is identified by her initials.  The Wisconsin
QC review number is 112061.
      2.    All citations in this decision to the
regulations will refer to the 1991 C.F.R.
      3.    During the period at issue, August 1992, this
section appeared at � 3555.D.1 of the QCM.
      4.    The State agency is required to:  1) apply the
prescribed sampling, methods, and schedules; 2) conduct
field investigations; 3) provide the resources and
methods necessary to analyze the findings of the system;
4) take appropriate corrective action on improperly
authorized or denied assistance; and 5) assure access by
Department of Health and Human Services staff to State
and local records relating to public assistance.  45
C.F.R. � 205.40(b)(1)(i) - (v).  Wisconsin asserted that
it did comply with the QCM in those five areas.